CLARK v. STATE (2026)

Affirmed.

I fully agree with affirmance of this appeal. I write to discuss Florida's procedure for Anders ¹ appeals.

In 1974, the Florida Supreme Court, in furtherance of what it thought Anders v. California required, set aside a principle long central to Florida appellate practice and rooted in the Florida Constitution's allocation of judicial power: that the parties frame the issues and the court decides them. Twenty-six years later, in Smith v. Robbins, 528 U.S. 259 (2000), the United States Supreme Court held that Anders merely described one constitutionally adequate procedure, but not the only one, and suggested that abandoning the party presentation principle was not required to satisfy the federal Constitution. Florida's Anders procedure has not been updated in light of Smith.

This case is a quintessential illustration of what the procedure unreasonably demands. The Appellant admitted a probation violation through an open plea, proceeded through a colloquy the trial court conducted without apparent flaw, and received a sentence within statutory bounds. Appointed appellate counsel reviewed the record, found no argument he could make in good faith, and said so in an Anders brief—yet still asked this Court to “review the propriety of the trial court's rulings” without identifying any impropriety. Under Florida Rule of Appellate Procedure 9.140(g)(2)(A), this Court must do exactly that: search the record for arguable issues no party has raised. This mandate is jurisdictionally problematic, ethically awkward, and, after Smith, constitutionally unnecessary. In this concurring opinion, I trace the development of Florida's Anders procedure, identify the problems it produces, and propose solutions within the Florida Supreme Court's authority.

I. The historical foundation for the Anders procedure

More than sixty years ago, in Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court held that the Sixth Amendment, applicable to the States through the Fourteenth Amendment, guarantees the appointment of trial counsel for indigent state felony defendants. Gideon did not arrive unheralded. The Court had previously required appointed counsel in state capital cases, Powell v. Alabama, 287 U.S. 45 (1932), and in federal felony prosecutions, Johnson v. Zerbst, 304 U.S. 458 (1938). Yet barely two decades before Gideon, the Court had surveyed the states and concluded that “in the great majority of the states, it has been the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right, essential to a fair trial.” Betts v. Brady, 316 U.S. 455, 471 (1942). Gideon overruled Betts a mere twenty-one years later. If that history teaches anything relevant here, it is that no procedural framework—however entrenched—is beyond reexamination when experience reveals that it rests on a mistaken premise.

The right Gideon recognized does not extend of its own force to appeals, for there is no federal constitutional right to appellate review of a criminal conviction. Ross v. Moffitt, 417 U.S. 600, 606 (1974). But when a state elects to provide appellate review, the terms on which it does so are subject to constitutional scrutiny. Griffin v. Illinois, 351 U.S. 12, 18 (1956); Rinaldi v. Yeager, 384 U.S. 305, 310 (1966); Evitts v. Lucey, 469 U.S. 387, 393 (1985).

In a line of cases beginning with Griffin, the U.S. Supreme Court examined appellate procedural schemes under the principle that justice may not be conditioned on a criminal appellant's ability to pay for appellate counsel. See Ross, 417 U.S. at 605–09. Although “[a]bsolute equality is not required,” Douglas v. California, 372 U.S. 353, 357 (1963), the Douglas Court held that when state criminal defendants are permitted to retain counsel for a first appeal as of right, the Fourteenth Amendment requires that indigent appellants be placed on a substantially equal footing through the appointment of counsel at the state's expense. See McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 438 (1988) (referring to “principle of substantial equality”). See also Ross, 417 U.S. at 611 (noting that right to appellate counsel “is more profitably considered under an equal protection analysis”).

In Anders, the U.S. Supreme Court made its initial effort to ensure criminal appellants with paid counsel and those with government-appointed counsel were on equivalent footing. Florida's implementation of Anders began faithfully enough but quickly departed from what Anders actually required. Tracing the development of Anders in Florida reveals precisely when and how Florida's procedure exceeded its federal constitutional obligations.

A. The constitutional mandate: Anders v. California, 386 U.S. 738 (1967)

Charlie Anders was convicted of felony marijuana possession in California and sought to appeal his conviction. The California District Court of Appeal appointed counsel to represent him, but after reviewing the record and consulting with Anders, his appointed attorney concluded the appeal had no merit and told the court so by letter—a bare statement of no merit—while noting that Anders wished to file his own brief. Anders's request for substitute counsel was denied, he filed a pro se brief, the State responded, and the court of appeal affirmed his conviction after conducting its own examination of the record. Six years later, Anders sought habeas corpus relief arguing he had been deprived of counsel on appeal. When the California courts denied him relief, the U.S. Supreme Court granted certiorari. Anders, 386 U.S. at 739–41.

The U.S. Supreme Court reversed, holding that California's procedure violated the Fourteenth Amendment's requirements of equal protection as it discriminated against indigent defendants. Writing for the majority, Justice Clark concluded that counsel's bare no-merit letter was constitutionally deficient because it left counsel functioning as an amicus curiae—a neutral friend of the court—rather than as an active advocate for his client.² The majority grounded its holding in the Griffin/Douglas line of cases, which had established the principle that an indigent defendant on a first appeal of right must receive, as nearly as practicable, the same advocacy that a defendant with retained counsel would receive. A no-merit letter, the Court said, gave the appellate court only a cold record to examine, provided the defendant no meaningful assistance, and denied him the substantial equality the Fourteenth Amendment demanded. Anders, 386 U.S. at 741–44.

To cure this deficiency, the Court set forth a specific procedure. When appointed counsel concludes after conscientious examination that an appeal is wholly frivolous, counsel must file a brief, not a letter, referring to anything in the record that might arguably support the appeal, and must furnish a copy to the defendant with time to raise any points of his own choosing. The court, not counsel, then examines the proceedings and decides whether the appeal is wholly frivolous. If the court finds the appeal to be frivolous, it may permit withdrawal and affirm or dismiss. If any legal point is arguable on the merits, the court must appoint counsel to argue the appeal before rendering any decision. Id. at 744–45.

It is the reviewing court's role in this process that has caused the most controversy. The Anders Court clearly imposed a duty on the reviewing court to examine “all of the proceedings.” Id. at 744. The determination the reviewing court is to make, however, is whether “the case is wholly frivolous.” Id. The Florida Supreme Court, as we shall see below, subtly changed that directive from reviewing the record to confirm frivolity to searching the record for error.

B. Florida's initial response: State v. Wooden, 246 So. 2d 755 (Fla. 1971)

In what appears to be the first time the Florida Supreme Court explicitly imposed ³ the requirements of Anders, the court in State v. Wooden expressly receded from prior precedent, specifically Frizzell v. State, 238 So. 2d 67 (Fla. 1970), which had advised that court-appointed counsel need not appeal a case counsel determines has no merit. The Court held that Anders had rendered that position constitutionally untenable, and that appointed counsel cannot simply refuse to appeal. At a minimum, counsel must advise the court of counsel's conclusion that the appeal is frivolous, file a brief referring to anything in the record that might arguably support the appeal, furnish a copy to the defendant, and allow the court to make its own independent determination of whether the appeal is wholly frivolous. Wooden, 246 So. 2d at 757–58. From that point forward, the Anders minimum requirements operated as binding constitutional obligations on appointed appellate counsel in Florida.

C. Florida expands the mandate: State v. Davis, 290 So. 2d 30 (Fla. 1974)

Following Wooden’s incorporation of the Anders minimum requirements as obligations on appointed counsel, the Florida Supreme Court's opinion in State v. Davis extended the Anders doctrine further. For the first time, it imposed an affirmative duty on the district courts of appeal themselves to identify error. Id. at 33 (“It is still the appellate court's duty to review the record, sua sponte, to determine whether or not, in its opinion there has been error committed.”). In commanding this subtle expansion of Anders, the court placed the district courts of appeal in a role that sits in tension with fundamental appellate principles and jurisdictional requirements under the Florida Constitution. Notably, the decision was four to three, but the minority did not issue a written dissent.

Davis was convicted of robbery in Hillsborough County and sentenced to ten years. His appointed public defender filed an Anders brief concluding there was no arguable support for the appeal. Despite that concession, the Second District Court of Appeal independently reviewed the record, identified a significant Williams ⁴ rule violation—the State had introduced evidence of a separate robbery that had no relevant bearing on the charged offense—and reversed and remanded for a new trial. The State petitioned for certiorari to the Florida Supreme Court, arguing the Second District had improperly considered an issue not argued in the Anders brief, in conflict with Florida's well-established rule that unargued assignments of error are deemed abandoned. Davis, 290 So. 2d at 30–33.

The Florida Supreme Court affirmed the Second District and used the occasion to establish two principles of lasting importance to Florida Anders practice. First, it held that when an Anders brief is filed, Florida's general “not argued equals abandoned” rule of appellate practice must yield to the federal constitutional mandate of Anders. Davis, 290 So. 2d at 32–33. The Court read Anders as placing an affirmative duty on the appellate court to review the record sua sponte, not merely to evaluate what counsel identified, but to conduct its own full examination of the proceedings to determine whether any error occurred. Second, and critically, the Court expressly receded from all prior Florida decisions— including Tracey v. State, 130 So. 2d 605 (Fla. 1961) and Redditt v. State, 84 So. 2d 317 (Fla. 1955), and every other case embodying the abandonment rule—to the extent they conflicted with the Anders mandate, but only in the limited context of Anders briefs filed by state-appointed counsel for indigent defendants. Davis, 290 So. 2d at 33.

The tension created by Davis is significant. By requiring appellate courts to search the record sua sponte for unraised errors, the Court placed district courts of appeal in the role of advocate for one party. This function is at odds with the judicial neutrality demanded by the Florida Code of Judicial Conduct and foundational principles of judicial comportment. State v. Steele, 348 So. 2d 398, 401 (Fla. 3d DCA 1977) (“It is the established law of this State that every litigant, including the State in criminal cases, is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of the court to scrupulously guard this right of the litigant and to refrain from attempting to exercise jurisdiction in any manner where his qualification to do so is seriously brought into question. The exercise of any other policy tends to discredit and place the judiciary in a compromising attitude which is bad for the administration of justice.”) (emphasis added). Further, the process created tension with the constitutional requirement under article V of the Florida Constitution that judicial power be invoked by an argued controversy between adverse parties. See Terry v. State, 421 So. 3d 872, 873 (Fla. 2d DCA 2025) (Moe, J., concurring) (“Simply looking at the dates, one wonders how the text of article V, section 4 could have been originally understood in the 1950s to grant district courts of appeal a form of judicial power that does not seem to have been acknowledged in Florida until 1991 when In re Anders Briefs was decided.”).

Ultimately, the Florida Supreme Court understood Anders as something more than an evaluative review of the record to determine frivolity. The Davis Court read Anders as imposing an independent investigative obligation on the reviewing court to seek error. The distinction is not semantic. Review and search may traverse the same pages, but they differ in object and in beneficiary. A frivolity review audits counsel's advocacy, while a sua sponte error search performs it—for one party. The constitutional right at stake has always been the right to counsel, not the right to a court acting as counsel. Davis conflated the two, assigning Florida's district courts of appeal the advocate's function while borrowing the vocabulary of the auditor's.⁵ At the time, it was a plausible reading of Anders. However, subsequent federal caselaw shows it was an unnecessary disruption to the sovereign structure of Florida law.

D. Florida entrenches the expansion: State v. Causey, 503 So. 2d 321 (Fla. 1987)

Thirteen years later, in State v. Causey, the Florida Supreme Court built directly on the foundation laid in Wooden and Davis. It used the occasion of a certified question from the First District Court of Appeal to consolidate and expand Florida's requirements for appellate court review of Anders cases.

The core holding of Davis—that an appellate court receiving an Anders brief has an affirmative duty to review the record for error—was expressly reaffirmed in Causey. The Florida Supreme Court reiterated that Anders mandated independent judicial review, and that this duty could not be satisfied by a cursory examination limited only to errors counsel had already flagged. In doing so, Causey expressly disapproved Stokes v. State, 485 So. 2d 875 (Fla. 1st DCA 1986), which had held that Anders required no more than review of errors counsel or the appellant had already identified. That position, the Court held, was irreconcilable with Anders. Causey, 503 So. 2d at 322–23.

On the scope of required review, Causey struck a purported middle position. The Court declined to read Davis and Anders as mandating a fine-tooth-comb examination designed to uncover the most remote or unlikely error. But it established a firm floor: at minimum, the appellate court must examine the record to the extent necessary to discover any errors apparent on the face of the record. Going further, the Court adopted Judge Barfield's dissenting position in Stokes as the better policy—that the appellate court should review the entire record in every Anders case, whether or not the defendant files a pro se brief. Causey, 503 So. 2d at 322–23. The Court stated, “While courts should not assume the role of appellate counsel, reversible error should not be ignored simply because an indigent appellant or a public defender failed to point it out.” Id.⁶

Causey then added a procedural requirement that Davis had not addressed: once the court's independent review identifies any legal point arguable on the merits, it must, before deciding that issue, afford both the appellant and the State the opportunity to submit briefs on the court-identified issue. The Court read Anders’s directive to “afford the indigent the assistance of counsel to argue the appeal” as requiring genuine adversarial briefing from both sides, not merely appointment of counsel as a formality. The First District's reversal of Causey's conviction without ordering any briefing was therefore itself error, and the Florida Supreme Court quashed it and remanded. Causey, 503 So. 2d at 323.

In sum, Causey consolidated the Davis requirements into three distinct duties that Florida district courts of appeal must perform in every Anders case: first, conduct a meaningful independent review of the entire record, going beyond what counsel identified; second, identify any errors apparent on the face of that record regardless of whether any party raised them; and third, if any arguable issue is found, order briefing from both parties before rendering a decision on that issue. These three duties, taken together, became the operational definition of Florida's Anders review obligation and formed the direct foundation for what was later codified in Fla. R. App. P. 9.140(g)(2).

E. Retreating from strict adherence to Anders: McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988)

At the time the Florida Supreme Court was entrenching its understanding of Anders, the U.S. Supreme Court was gradually going in the opposite direction—pulling back from any strict obligations placed on reviewing courts in the several states and clarifying the role of government-appointed counsel.

McCoy was convicted of abduction and sexual assault in Wisconsin and sentenced to twelve years. His appointed appellate counsel studied the case, concluded the appeal was wholly frivolous, and gave McCoy three options: dismiss the appeal voluntarily, proceed pro se, or allow counsel to file a brief presenting the strongest available arguments while also advising the court of counsel's conclusion that the appeal was frivolous. Id. at 431–32. McCoy chose the third option. Counsel then filed what the Court described as a “schizophrenic” brief. The brief simultaneously advanced four arguments for reversal and declared those same arguments wholly without merit, while seeking leave to withdraw. Id. at 432. Critically, the brief did not comply with Wisconsin's Rule 809.32(1), which required an Anders brief to include not only references to anything in the record that might arguably support the appeal, as Anders mandated, but also a discussion of why those issues lacked merit. McCoy, 486 U.S. at 430–31. The Wisconsin court struck the brief and ordered a conforming one. Counsel refused, challenged the rule's constitutionality, and the Wisconsin Supreme Court upheld it. Id. at 432–33. The U.S. Supreme Court affirmed.

In McCoy, the U.S. Supreme Court clarified several foundational principles of the Anders doctrine that had remained somewhat uncertain in the two decades since Anders was decided. Most importantly, it articulated the clearest statement yet of what the Anders brief is actually for. The brief, the Court explained, is not a substitute for an advocate's merits brief; it is a device designed to serve two specific functions: first, to assure the appellate court that counsel has conducted a diligent and thorough review of the record; and second, to assist the court in making the critical determination of whether the appeal is truly so frivolous that counsel should be permitted to withdraw. McCoy, 486 U.S. at 438–39. The brief gives the indigent defendant what a non-indigent defendant can purchase—a thorough record review and identification of any arguable issues—and nothing more. Id. at 439.

The Court also used McCoy to define with precision the standard of diligence required of appointed counsel before filing an Anders brief. Every advocate, whether retained or appointed, must master the trial record, thoroughly research the law, and exercise judgment in identifying arguments that might be advanced on appeal, resolving all doubts and ambiguous legal questions in the client's favor. McCoy, 486 U.S. at 438, 444. Only after that full evaluation leads counsel to conclude the appeal is wholly frivolous—meaning it lacks any basis in law or fact—is withdrawal justified. Id. at 438–39 n.10. This, the Court said, is “the central teaching of Anders.” McCoy, 486 U.S. at 439.

On the constitutionality of Wisconsin's discussion requirement, the Court held it was entirely consistent with Anders. Requiring counsel to explain why the identified issues lack merit simply takes the Anders requirement one step further. It gives the court additional assurance that counsel was diligent, may forestall some withdrawal motions altogether by forcing counsel to confront weaknesses in their frivolousness conclusion, and helps the court evaluate the soundness of counsel's judgment. McCoy, 486 U.S. at 442. It does not put counsel in the role of amicus curiae or adversary, does not deny effective assistance of counsel, and does not implicate the Sixth or Fourteenth Amendments any more than the withdrawal motion Anders already permitted. Id. at 443. Once the court is satisfied that counsel was diligent and the appeal is frivolous, federal constitutional concerns are fully satisfied and the case may be disposed of under state law. Id. at 444. If the court instead finds nonfrivolous issues, it must appoint counsel and order a full merits brief before deciding anything. Id.

F. The assistance of counsel, not the court: Penson v. Ohio, 488 U.S. 75 (1988)

Penson v. Ohio is perhaps the starkest illustration of the reason for the Anders process. As the historical overview so far makes clear, the constitutional right at issue is the representation by counsel on appeal. The constitutional infirmity flows from counsel's actions, not from the court's review of counsel's actions. As both Anders and Penson demonstrate, even if a reviewing court does its own review, a violation still occurs because counsel has not performed adequately. Thus, the foundational requirement of the Anders process is that counsel provide the reviewing court with a basis from which to conduct its frivolity review. When appointed counsel fails to provide the reviewing court with anything of substance, the process fails to fulfill its purpose.

Penson was convicted of several serious crimes in Ohio and sentenced to eighteen to twenty-eight years. His appointed appellate counsel filed a document captioned “Certification of Meritless Appeal and Motion”—a bare, conclusory statement reciting that counsel had reviewed the record, found no reversible error, and would not file a brief, accompanied by a request to withdraw. Id. at 77–78. The Ohio Court of Appeals granted the motion, gave Penson thirty days to file a pro se brief, and then conducted its own independent record review. Id. at 78. The court found the certification “highly questionable,” identified “several arguable claims,” found actual plain error on one count, and reversed that conviction, while simultaneously concluding that Penson had “suffered no prejudice” from counsel's abandonment because the court had reviewed the record itself and had the benefit of his codefendants’ counsel's briefs. Id. at 79. The U.S. Supreme Court reversed, identifying three distinct constitutional errors.

First, the withdrawal motion should never have been granted because counsel's certification was nothing more than the bare no-merit statement Anders had condemned. The document referred to nothing in the record that might arguably support the appeal and gave the court no basis to evaluate whether counsel had actually conducted a diligent search. Id. at 81–82. Second, the court erred in granting withdrawal before conducting its own independent record examination to determine whether counsel's frivolousness conclusion was sound, a precondition Anders and McCoy had both required. Id. at 82–83. Third, and most fundamentally, once the court determined that the record supported several arguable claims, it was constitutionally required to appoint new counsel before deciding those issues. Id. at 83–84. At that point the Anders exception to the Douglas right to counsel ceased to exist. There was no longer any basis for proceeding without representation. The court's decision to resolve those issues itself, without an advocate for Penson, deprived him of the constitutional right Douglas guaranteed.

The Court emphatically rejected Ohio's argument that the error was harmless or that Penson suffered no Strickland ⁷ prejudice. Penson, 488 U.S. at 85–88. Where a defendant is left entirely without counsel at a critical stage of appellate proceedings, prejudice is legally presumed. The harmless error analysis has no application, and the court's own review of the record is no substitute for the single-minded advocacy to which every criminal appellant is constitutionally entitled. Id. at 88. Importantly for present purposes, Penson also confirmed what McCoy had described as the court's evaluative role: the Anders brief “assists the court” in determining whether counsel was diligent and whether the appeal is truly frivolous. Id. at 81–82. As the Penson Court noted, “Counsel's failure to file such a brief left the Ohio court without an adequate basis for determining that he had performed his duty carefully to search the case for arguable error and also deprived the court of the assistance of an advocate in its own review of the cold record on appeal.” Id. at 82. When counsel provides no such tools, as in Penson, the entire prophylactic framework collapses.

G. Florida adheres to its expansive reading of Anders: In re Anders Briefs, 581 So. 2d 149 (Fla. 1991)

In re Anders Briefs arose from three consolidated cases, each involving indigent defendants whose appointed counsel filed Anders briefs conceding no reversible error in the conviction or plea proceedings but identifying minor sentencing issues such as improperly imposed costs or guideline departure errors. In each case, the State moved to strike the Anders portion of the brief and to preclude the defendant from filing a pro se brief, contending that once counsel identifies any arguable issue the Anders procedure is unavailable entirely. The First District rejected the State's position, allowed the defendants to proceed under Anders, and certified a question of great public importance to the Florida Supreme Court. In re Anders Briefs, 581 So. 2d at 150–52.

The Court used the occasion to do two things. First, it consolidated and restated the full Anders procedural framework as it stood in Florida after Davis and Causey: counsel must master the record, thoroughly research the law, and conclude the appeal is wholly frivolous before moving to withdraw; the motion must be accompanied by a brief referring to every arguable legal point; the indigent litigant must be given the opportunity to file a pro se brief; and the appellate court must conduct a full and independent review of the entire face of the record in search of arguable issues even if the indigent criminal appellant files nothing. In re Anders Briefs, 581 So. 2d at 150–51.

Second, the Court drew a line that Anders itself had never addressed—distinguishing between minor sentencing issues and substantial ones for purposes of determining when the Anders procedure remains available. The Court held that counsel may raise minor sentencing errors such as improperly imposed costs in an Anders brief without forfeiting the defendant's right to Anders review, including the right to file a pro se brief and the court's independent record examination. Id. at 152. However, where counsel raises substantial sentencing errors of any kind, the Anders procedure is inappropriate. Those issues are sufficiently meritorious to require full adversarial presentation with the assistance of counsel, meaning a standard merits brief must be filed instead.

Despite the U.S. Supreme Court's then-recent reaffirmation in McCoy that reviewing courts are to make a frivolity determination, and appointed counsel are to search for arguable error, the Florida Supreme Court continued to insist that district courts of appeal take on the role of counsel.

H. The Anders procedure is one option among many: Smith v. Robbins, 528 U.S. 259 (2000)

Robbins was convicted of second-degree murder and grand theft in California. His appointed appellate counsel concluded the appeal was frivolous and filed a brief complying with California's Wende ⁸ procedure. This was a post-Anders procedure under which counsel summarizes the procedural and factual history of the case with record citations, attests to having reviewed the record and informed the client, and requests that the court independently examine the record for arguable issues, without explicitly stating the appeal is frivolous or moving to withdraw. The California Court of Appeal, after its own review, affirmed. Robbins sought federal habeas relief, arguing his counsel's Wende brief failed to comply with Anders because it did not refer to anything in the record that might arguably support the appeal. Both the federal district court and the Ninth Circuit Court of Appeals agreed, treating the Anders procedure as the exclusive constitutionally permissible method for handling frivolous indigent appeals. The Supreme Court reversed.

The Court's most significant contribution in Smith was its authoritative resolution of a question left open by Anders, McCoy, and Penson: whether the procedure described in the final section of Anders was constitutionally mandatory or merely one acceptable method among others. The Court held unambiguously that Anders “is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals.” Smith, 528 U.S. at 276. The procedure described in Anders was characterized as a “prophylactic framework,” id. at 273 (quoting Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)), not an independent constitutional command. States are free to craft different procedures, so long as those procedures afford indigent defendants adequate and effective appellate review—meaning the procedure must reasonably ensure that an indigent's appeal is resolved in a way related to its merit. Id. at 276–77.

Another significant contribution of Smith was its implicit approval of a procedure under which the reviewing court examines only the issues counsel identified as potentially arguable. As stated in its discussion of McCoy, “[I]t appears that in the McCoy scheme counsel discussed—and the appellate court reviewed—only the parts of the record cited by counsel in support of the ‘arguable’ issues he raised.” Id. at 283. Smith’s approving description of the McCoy scheme strongly suggests that mere review of the issues raised by counsel through the McCoy procedure affords constitutionally adequate review. By contrast, the Florida Supreme Court's reading of Anders to require a sua sponte, independent review of the entire record ⁹ was—and remains—beyond what the U.S. Supreme Court deems necessary to uphold an indigent defendant's rights.

The Court validated California's Wende procedure as constitutionally adequate, finding it superior to procedures previously condemned and at least comparable to those previously approved. It also noted, candidly, that Anders itself had faced “consistent and severe criticism,” including the tension between requiring counsel to identify arguable issues while simultaneously declaring the appeal wholly frivolous, and the ethical conflict inherent in asking counsel to act against the client's interests. Id. at 281–82. See also Martha C. Warner, Anders in the Fifty States: Some Appellants’ Equal Protection Is More Equal Than Others’, 23 Fla. St. U. L. Rev. 625 (1996). Wende, by not requiring counsel to explicitly characterize the appeal as frivolous or identify specific arguable issues, represented California's good-faith effort to mitigate those problems. Smith, 528 U.S. at 281.

Smith crystallized a significant and widening divergence between how the U.S. Supreme Court has understood the Anders doctrine over time and how the Florida Supreme Court has historically treated it.

The U.S. Supreme Court's trajectory across Anders (1967), McCoy (1988), Penson (1988), and Smith (2000) reflects a court that has increasingly pulled back from treating the Anders procedure as a rigid constitutional mandate. Anders set out a procedure that was not central to its holding. Smith, 528 U.S. at 276 (“[W]e hold that the Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals.”). McCoy validated a state variation that went beyond Anders in some respects while arguably providing less effective advocacy in others. Penson reaffirmed the role of appointed counsel (search for error) and the role of the reviewing court (frivolity review). And Smith drew the logical conclusion from all of this: the Anders procedure is a prophylactic suggestion, not a constitutional straitjacket, and states have wide latitude to craft superior alternatives. The Court explicitly recognized the federalism principle that states should serve as “laboratories” for crafting solutions to difficult policy problems. Smith, 528 U.S. at 275–76. Most importantly, the Court never specifically required a reviewing court to seek error on behalf of an appellant. This was confirmed in Smith.

Florida, by contrast, has moved precisely in the opposite direction. Rather than recognizing the flexibility Smith confirmed, the Florida Supreme Court's decisions in Davis (1974), Causey (1987), and In re Anders Briefs (1991) progressively expanded and rigidified the Anders procedure—adding the sua sponte record review requirement, mandating adversarial briefing on court-identified issues, and codifying the entire framework in Rule 9.140(g)(2). Florida has demanded of its district courts of appeal more than Anders requires and more than Smith confirmed the U.S. Constitution compels, all to the detriment of faithful adherence to our own Constitution.¹⁰

The Florida Supreme Court has never revisited ¹¹ its Anders jurisprudence in light of Smith, leaving Florida with one of the most expansive and constitutionally unnecessary Anders review obligations of any state in the country. This court has acknowledged the tension and, in Anderson v. State, 410 So. 3d 599, 606 (Fla. 1st DCA 2024), certified a question of great public importance to the Florida Supreme Court. The question was re-certified in 2025. See Ash v. State, 422 So. 3d 181, 184 (Fla. 1st DCA 2025). So far, our supreme court has declined to answer these certified questions. See, e.g., Ash v. State, No. SC2025-1858, 2026 WL 1494041, at *1 (Fla. May 28, 2026). Anders delenda est.¹²

II. The problematic nature of the Anders process

The Anders process in Florida has a variety of constitutional, ethical, and jurisdictional shortcomings.

First, the Anders procedure as practiced in Florida rests on a constitutional foundation—equal protection for indigent defendants—that it simultaneously undermines. By requiring appellate judges to independently search the record for error on one party's behalf, Florida's procedure is at odds with a long-established, indeed revered, understanding of the judicial office. State ex rel. Davis v. Parks, 194 So. 613, 615 (Fla. 1939) (“This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.”); see also Fla. Code of Jud. Conduct Canon 2A (stating that a judge must “respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”); Fla. Code of Jud. Conduct Canon 3B(5) & cmt (stating that a judge must “perform judicial duties without bias or prejudice” and “perform judicial duties impartially and fairly”). In the process, the review completely undermines the equal protection it is supposed to provide. Apart from narrow exceptions ¹³ in death penalty cases and certain postconviction proceedings, no other criminal litigant, whether represented by retained counsel or by appointed counsel in a non-Anders appeal, receives the benefit of a judicial officer independently searching the record for error on that litigant's behalf. The Florida solution thus creates the very inequality it was designed to cure. Florida has elevated a class of appeals—the least meritorious—and made them more equal than others. Warner, supra, at 662; see also George Orwell, Animal Farm (1945). The equal protection principle that gave birth to the Anders procedure now condemns Florida's version of it: a doctrine rooted in the proposition that justice may not be conditioned on a defendant's ability to pay has evolved, in Florida, into a doctrine that rewards the least meritorious appeals with the most thorough judicial scrutiny.¹⁴

Second, the procedure requires appellate courts to perform functions—independent record searching and issue generation—that conflict with the Florida Code of Judicial Conduct's requirements of impartiality, the prohibition on practicing law, and the traditional requirement of an argued controversy to invoke the judicial power. Canon 2A of the Florida Code of Judicial Conduct provides that judges “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” What could undermine public confidence in the judiciary more than performing the function of an advocate for a party before us? Canon 5G plainly states, “A judge shall not practice law.” See also Fla. Const. art. V, § 13. What else would one call a judge independently searching a trial court record for arguable error on a party's behalf? Identifying legal error in a trial record and formulating the legal theory on which that error might support reversal, by any definition, is the practice of law—a function that belongs exclusively to the parties and their counsel, not to the court.¹⁵ The Anders procedure as practiced in Florida requires judges to do precisely what the canons forbid. This concern has been recognized by other state supreme courts that have faced the same problem and have chosen to reject the procedure. See Anderson, 410 So. 3d at 603–04 (collecting cases from other states). Our own supreme court has acknowledged the concern. N.S.H., 843 So. 2d at 901 (“Absent the compelling concerns expressed by the United States Supreme Court in Anders, we cannot justify thrusting appellate courts into a position that represents a departure from the court's traditional role as a neutral decision maker.”). But the ethical concerns, while serious, are only the beginning.

More fundamentally, Florida's Anders procedure requires appellate courts to exercise the judicial power beyond its constitutional bounds. The district courts of appeal in Florida have the power to decide a “case” only if there is an actual “case” before them. “ ‘The words ‘case’ or ‘cause,’ when used as legal terms, are generally understood as meaning a judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected or wrongs are prevented or redressed.’ ” First Nat. Bank v. Bebinger, 128 So. 862, 863 (Fla. 1930) (quoting Ex parte Chesser, 112 So. 87, 90 (Fla. 1927)). But a controversy alone does not exhaust the requirement. The judicial power operates on the issues the parties present for decision. It does not extend to issues the parties have left unframed, and a court may not frame them itself.¹⁶ See Rosier, 276 So. 3d at 406 (appellate courts may not address issues not raised by a party and may not depart from their dispassionate role to become an advocate for a party).

An Anders appeal presents this difficulty in its plainest form. A potential controversy exists—the appellant seeks reversal of his conviction, and the State defends the judgment—but no issue has been presented for the court to decide. Appointed counsel has identified no arguable ground, and the appellant, far more often than not, presents none.¹⁷ Confronted with a potential controversy the parties have not reduced to any argued issue, the court's lawful course is to resolve the appeal on what has been presented or to require that an issue be developed through briefing. What the court may not do is supply the issue itself by searching the record to discover an issue the appellant's counsel declined to advance. See Pinellas Cnty. v. Joiner, 389 So. 3d 1267, 1273 n.10 (Fla. 2024); Trappman v. State, 384 So. 3d 742, 751 n.4 (Fla. 2024); In re Doe 23-B, 377 So. 3d 1211, 1218–19 (Fla. 1st DCA 2024). Yet that is precisely what Florida's Anders procedure commands. It thus requires the district courts of appeal to exercise judicial power in the absence of the predicate that power presupposes: contentions submitted for adjudication. This is not a procedural inconvenience but an infringement of the judicial power the Florida Constitution confers. Anderson, 410 So. 3d at 606. If law is to be commanded, it must be obeyed.¹⁸

Third, McCoy placed the investigative burden squarely on counsel, not the court. The U.S. Supreme Court described the appellate court's role under Anders as evaluative—satisfying itself “that the attorney has provided the client with a diligent and thorough search of the record” and determining “whether counsel has correctly concluded that the appeal is frivolous.” McCoy, 486 U.S. at 442. The Anders brief, the Court explained, “assists the court” in making that determination. Id. at 439. It does not trigger an independent judicial investigation that operates apart from and beyond what counsel identified. Florida's Causey standard inverted this relationship entirely. Rather than the court evaluating whether counsel conducted a diligent and thorough search, Causey transformed the court into an independent investigator whose sua sponte search of the entire record extends beyond anything counsel identified and operates regardless of whether the defendant files anything at all. Causey, 503 So. 2d at 322–23. That investigative and issue-generating expansion finds little support in McCoy and none in Smith. It is a Florida creation that was judicially imposed at the expense of Florida's historical appellate practice. Smith confirms the imposition was never necessary.

Fourth, the decision in Smith laid bare the constitutional superfluity of Florida's Anders procedure. In Smith, the U.S. Supreme Court held unambiguously that the Anders procedure is “merely one method of satisfying the requirements of the Constitution for indigent criminal appeals,” Smith, 528 U.S. at 276, and characterized it as a “prophylactic framework,” id. at 273, rather than a constitutional command. States are free—indeed, encouraged—to craft superior alternatives, so long as those alternatives afford indigent defendants adequate and effective appellate review. Id. at 276–77. The Court expressly invoked the federalism principle that states should serve as “laboratories” for crafting solutions to difficult policy problems, and held that the Constitution “erects no barrier” to states adopting procedures different from Anders. Id. at 275–76. Florida has done the opposite. Rather than treating Smith as the liberation it was—an authoritative confirmation that the constitutionally questionable and ethically problematic Anders procedure need not be followed at all—Florida has never revisited its Anders jurisprudence in light of that decision. The requirements imposed by Davis, expanded by Causey, consolidated by In re Anders Briefs, and codified in Rule 9.140(g)(2) remain in place, unexamined and unchanged, a quarter century after the U.S. Supreme Court confirmed they are constitutionally unnecessary. Florida thus finds itself in the anomalous position of being more demanding than the federal constitutional floor requires, more burdensome on its appellate courts than any federal authority mandates, and more generous to the least meritorious class of appeals than to any other—all in service of a procedure the nation's highest court has characterized as merely one option among many.

III. The solution to the Anders problem in Florida

The solution to the Anders problem is neither novel nor singular. As Judge Warner documented thirty years ago, numerous states have already abandoned or substantially modified the Anders procedure—some prohibiting withdrawal entirely and requiring a full merits brief in all cases, others adopting streamlined procedures that eliminate the judicial advocacy role while preserving the defendant's rights, and still others crafting hybrid approaches tailored to their own appellate systems. Warner, supra, at 643–62. Some federal appellate courts, such as the Fifth Circuit Court of Appeals, require counsel to file a brief that addresses, at a minimum, a checklist of significant issues. See, e.g., U.S. Court of Appeals for the Fifth Circuit, Anders Guidelines. Florida has a menu of constitutionally permissible options from which to choose, any of which is permissible under Smith, 528 U.S. at 276. See also Warner, supra, at 652–62.

Of the available alternatives, Judge Warner's proposed solution is the most faithful to the constitutional, ethical, and jurisdictional principles identified above. By prohibiting withdrawal and requiring appointed counsel to file a full merits brief, it eliminates the equality inversion, restores judicial neutrality, resolves the jurisdictional problem, returns the investigative burden to counsel where McCoy placed it, and renders the court's sua sponte review obligation moot. Where counsel files a full merits brief there is no withdrawal motion, no Anders brief, and no occasion for the court to assume an investigative role. See Michael J. Ritter, Resolving the Anders Dilemmas: How & Why Texas Should Abandon the Anders Procedure, 12 St. Mary's J. on Legal Malpractice & Ethics 94, 141 (2022) (suggesting a very similar solution for Texas).

This proposed solution addresses each of the problems identified above. First, Florida would no longer create a special class of criminal appellants. All criminal appellants would be treated equally, the very outcome the U.S. Supreme Court was seeking when it decided Douglas and Anders. Second, appellate judges would no longer be required to act as advocates for one party. The fundamental aspect of justice, that it is blind with respect to the parties before the court, would be fully restored. Third, the district courts of appeal across Florida would be acting within their proper role. The courts would receive a case that counsel presented, rather than search the record themselves for one to decide. Fourth, the onus of representation would be placed back where it properly belongs—with defense counsel. No longer would appointed defense counsel, confronted with a difficult and perhaps meritless case, be incentivized to declare that no arguable issue exists and shift the burden of finding error to the courts. Lastly, Florida would be operating within the constitutional space Smith confirmed states are free to occupy, without the jurisdictional, ethical, and constitutional quandaries the current procedure imposes.

The obvious rejoinder to this solution is Davis itself. There, the court's independent search noticed what appointed counsel failed to brief—a significant Williams violation—and the defendant obtained a new trial. If the search is abolished, the argument goes, the next Davis serves his sentence. But Davis is not a counterexample to reform; it is the exhibit of why reform is required. What Davis proves is that counsel's certification of frivolity failed inspection. The audit worked, and the constitutional failure it exposed was counsel's. Indeed, the constitutional error in Davis-style adjudication lay in what came next: a court identifying an issue and resolving it with no briefing and no advocate. This was precisely the practice Penson later condemned and Causey had to correct. More fundamentally, Judge Warner's proposal does not remove the protection Davis received; it relocates that protection to where the Constitution has always placed it. Counsel who must file a merits brief cannot outsource the search for error to the court, for the McCoy standard of diligence—mastery of the record, thorough research, all doubts resolved in the client's favor—leaves no legitimate category of arguable issues for a court to discover. And should counsel nonetheless fail, the defendant has the same remedies every other criminal appellant holds: a claim of ineffective assistance, Smith, 528 U.S. at 285–89, and the discipline of the bar. This is the safety net on which every defendant with retained counsel has always relied. The alternative—retaining judicial error-hunting as a backstop against deficient advocacy—proves far too much. If appellate courts must search the record because appointed counsel might miss something, that logic condemns every appeal, not merely the frivolous ones. Yet no one proposes that the district courts of appeal audit the briefs of retained counsel for overlooked reversible error. The cure for inadequate counsel has never been a court performing counsel's function. It is adequate counsel.

To the extent an attorney is concerned about advancing a frivolous claim under Judge Warner's proposal, there is little need for concern. The Florida Professional Ethics Committee long ago addressed this issue, stating:

As to the ethical propriety of such conduct, however, it is the opinion of the Committee that a court-appointed attorney who, at the insistence of his client and in accordance with the procedure set forth by the United States Supreme Court and approved by the Supreme Court of Florida in State v. Wooden, 246 So. 2d 755 (Fla. 1971), commences such an appeal may not thereafter be said to have acted unethically in commencing the appeal.

Fla. Prof'l Ethics Comm., Op. 81-9 (1982), 1982 WL 52522, at *3. See also ABA Standards for Criminal Justice: Criminal Appeals, Standard 21-3.2(b) (2d ed. 1980). Furthermore, as Judge Warner noted, “[I]n the hierarchy of rights and obligations under our Constitution, the preservation of the right to counsel must have a higher priority than the nonconstitutionally based ethical dilemma that may arise occasionally for the attorney who finds no arguable error in an appeal.” Warner, supra, at 667. Florida's dual constitutional obligations and the considered ethical assessment of The Florida Bar support the solution Judge Warner proposed: prohibiting withdrawal and requiring counsel to present the case. There need not be an ethical barrier to this solution. The Florida Supreme Court need only direct that it be followed.

The Florida Supreme Court has both the authority and the opportunity to bring Florida's Anders jurisprudence into alignment with the Florida Constitution, judicial ethics, and the practice of the many states that have already charted a better course.

IV. Conclusion

Pursuant to Florida Rule of General Practice and Judicial Administration 2.140(a), this concurring opinion will be referred to the Clerk of the Florida Supreme Court and the Appellate Court Rules Committee of The Florida Bar for consideration of an amendment to Florida Rule of Appellate Procedure 9.140(g)(2)(A). Any proposed amendment should relieve the district courts of appeal of counsel's task—seeking out arguable issues—and thereby restore both the party-presentation principle that Florida subordinated in 1974 and the neutral judicial role that Article V of the Florida Constitution contemplates. The committee should also consider which framework best fits the requirements of Florida law: the discontinuation of Anders withdrawal as Judge Warner recommended, a modified Anders procedure like the one the U.S. Supreme Court upheld in McCoy,¹⁹ or another scheme permissible under Smith.²⁰ In doing so, the committee would not be retreating from the constitutional guarantee of equal justice for indigent appellants. The committee would simply be restoring the proper structure of Florida appellate practice that was unnecessarily disrupted in an attempt to follow the Anders mandate. And as Smith confirmed a quarter century ago, nothing in the federal Constitution ever required it. Fidelity to precedent has never meant fidelity to error. State v. Sturdivant, 94 So. 3d 434, 440 (Fla. 2012) (stating that stare decisis may yield where an error in legal analysis has occurred).

FOOTNOTES

1.   Anders v. California, 386 U.S. 738 (1967).

2.   It is worth noting that it is the absence of adequate representation by counsel that causes the constitutional infirmity, not the lack of a reviewing court's independent examination of the record. Indeed, the state appellate court in Anders conducted its own independent review of the record and the U.S. Supreme Court nonetheless found a constitutional violation. An appellant has no constitutional right, federally or in Florida, to counsel-like assistance from a court.

3.   The court in Baggett v. Wainwright, 229 So. 2d 239, 242 (Fla. 1969), discussed Anders, but did not expressly overrule precedent to impose the obligations in Florida.

4.   Williams v. State, 110 So. 2d 654 (Fla. 1959).

5.   As one member of this court has observed, Anders, properly understood, only “requires the appellate court to review the record to determine that it agrees with counsel's assessment that an appeal would be wholly frivolous.” Rosier v. State, 276 So. 3d 403, 414–15 (Fla. 1st DCA 2019) (en banc) (Winokur, J., concurring).

6.   The admonition refutes itself. A court cannot ensure that reversible error is not “ignored” without searching for it, and a court cannot search for error on a party's behalf without assuming the role the same sentence forbids. Causey prohibited the role in one clause and commanded the function in the next. The dilemma dissolves only under the conception Causey declined to adopt: the court as auditor of counsel's work, not performer of it.

7.   Strickland v. Washington, 466 U.S. 668 (1984).

8.   People v. Wende, 25 Cal. 3d 436, 600 P.2d 1071 (1979).

9.   While one may contend that Rule 9.140(g)(2)(A) requires review only of the “face of the record,” no authority defines where that face begins and ends. Causey fixed a floor of “errors apparent on the face of the record,” then adopted review of “the entire record” in the next paragraph. 503 So. 2d at 322–23. In re Anders Briefs directs “a full and independent review of the record to discover any arguable issues apparent on the face of the record.” 581 So. 2d at 151. There, the face limits the findings, not the search. As a result of this ambiguity, each judge affords the record whatever review he or she deems fit.

10.   The Florida Supreme Court acknowledged in 2003 that it had not reevaluated its Anders procedure in light of Smith. N.S.H. v. Florida Dep't of Children & Family Servs., 843 So. 2d 898, 901 (Fla. 2003). It has not done so in the twenty-three years since that acknowledgment. Justice Lewis, who would have gone the other way and extended Anders-type protections to termination proceedings, nonetheless allowed that the procedure itself was ripe for reconsideration: “If it is the Anders process itself that should be reconsidered, then so be it, and I would agree.” Id. at 908 (Lewis, J., concurring in result only).

11.   By this, I mean the court has not revisited Anders in the criminal context in its jurisprudence. Remarkably, the Florida Supreme Court imposed the Anders framework on counsel assigned to cases involving involuntary civil commitments under the Baker Act. Pullen v. State, 802 So. 2d 1113 (Fla. 2001). In a partial dissent to the application of the Anders framework to Baker Act proceedings, Justice Pariente stated, “Indeed, I have substantial doubts about the necessity of our current Anders procedure in the criminal context. I have never understood the logic of requiring appellate courts to provide a heightened review for those appeals that are the least meritorious by placing on the appellate courts the responsibility of searching the record for potential errors.” Id. at 1121 (Pariente, J., concurring in part, dissenting in part). The former justice's concerns are well taken.In 2016, the Florida Supreme Court amended the Florida Rules of Appellate Procedure to create the current Rule 9.140(g)(2)(A). There was no commentary by the court about the propriety of the court's jurisprudence on the issue. In re Amendments to Florida Rule of Appellate Procedure 9.140, 194 So. 3d 309 (Fla. 2016). It promulgated the rule to “ ‘codif[y] Anders case law.’ ” Anderson v. State, 410 So. 3d 599, 601 (Fla. 1st DCA 2024) (quoting In re Amendments to Florida Rule of Appellate Procedure 9.140, 194 So. 3d 309 (Fla. 2016)).

12.   Cato the Elder is said to have added to every vote in the Roman Senate, whatever its subject, the demand that Carthage be destroyed: Carthago delenda est. Rome eventually acted. Plutarch, Life of Cato the Elder 27 (Bernadotte Perrin trans., Loeb Classical Library 1914), https://penelope.uchicago.edu/Thayer/E/Roman/Texts/Plutarch/Lives/Cato_Major*.html.

13.   See Fla. R. App. P. 9.141(b)(2); 9.142(a)(5). These rules are also in possible tension with our State's Constitution. The propriety of these rules, however, is outside the purview of this opinion.

14.   What Florida's rule crowns with the most exhaustive judicial attention is the wholly frivolous appeal—the case counsel has certified as having no value in law or fact—while every meritorious appeal receives only the scrutiny its advocates earn for it. It is the worthless claim, not the indigent claimant, that this scheme has ennobled. Ayn Rand, writing in the same year Wooden was decided, warned of this sort of inversion of hierarchy: “It is not equality before the law that they seek, but inequality: the establishment of an inverted social pyramid, with a new aristocracy on top—the aristocracy of non-value.” Ayn Rand, The Age of Envy, in The Return of the Primitive: The Anti-Industrial Revolution 130, 140–41 (Peter Schwartz ed., 1999). The warning was not new. Ecclesiastes had observed it millennia earlier: the fool set in great dignity, and the noble sitting in a low place. Ecclesiastes 10:5–6.

15.   Issue spotting on behalf of a party is not part of the judicial function. As the Fourth District Court of Appeal has observed, requiring advocacy on behalf of a party “represents a radical departure from the traditional role of appellate judges as neutral decision makers without bias or prejudice for or against any party.” Ostrum v. Dep't of Health & Rehab. Servs., 663 So. 2d 1359, 1361 (Fla. 4th DCA 1995), quoted with approval in N.S.H., 843 So. 2d at 902.

16.   The fundamental error doctrine does not undermine this conclusion. That doctrine permits an appellant to seek reversal on an unpreserved issue if the error is sufficiently serious. It does not authorize a court to identify and correct error no party raised. As Judge Winokur observed in Rosier, 276 So. 3d at 410–14 (Winokur, J., concurring), the distinction is critical: fundamental error means “error so serious that a litigant can raise it on appeal even if unpreserved,” not “error so serious that an appellant does not even have to raise it on appeal and the court bears an obligation to discover and correct the error sua sponte.” Id. at 411. Florida's Anders procedure, by requiring courts to search the record for error no party has identified, collapses that distinction as well.

17.   According to the clerk of the First District Court of Appeal, in 2024, 818 direct criminal appeals were filed. In 383 of those cases, Anders briefs were filed. Only 52 criminal appellants filed a pro se brief—a mere 14% of those afforded the opportunity. This number is particularly striking considering that many of these individuals were in the Florida Department of Corrections at the time of their appeal and had access to prison law libraries, Westlaw research resources, and certified inmate law clerks. See generally Fla. Admin. Code R. 33-501.301. That six of every seven of those afforded the opportunity filed no brief of any kind further confirms that the Anders procedure, as applied in Florida, is generating judicial labor while suppressing participation from those it was meant to protect. Indeed, In re Anders Briefs states that “the appellate court is to conduct its full and independent review even if the indigent elects not to file a pro se brief,” 581 So. 2d at 151, affirmatively incentivizing the indigent appellant not to file. The procedure has become a self-licking ice cream cone: a process sustained by the very labor it exists to generate.

18.   The formulation adapts Bacon's observation that nature, to be commanded, must be obeyed. See Francis Bacon, Novum Organum bk. 1, aph. 3 (1620) (“Nature to be commanded must be obeyed ․”), https://pages.uoregon.edu/kimball/Bacon.htm. This principle applies with equal force to our constitutional structure.

19.   For the current version of Wisconsin's procedure, see Wis. Stat. Ann. § 809.32 (2025).

20.   The committee may also consider the streamlined procedure the Florida Supreme Court prescribed for termination of parental rights appeals in N.S.H., under which counsel certifies a conscientious review and the client may file pro se, without independent judicial review of the record. 843 So. 2d at 903–04. I do not propose it here. In the criminal context, a certification unaccompanied by any document identifying arguable issues risks becoming, in practice, the bare no-merit letter that Anders and Penson forbid.

Per Curiam.

Osterhaus, C.J., and Roberts, J., concur; Neff, J., concurs with opinion.